BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160003470 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __x______ __x______ ___x__ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160003470 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. ____________x_____________ CHAIRPERSON I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. BOARD DATE: 11 May 2017 DOCKET NUMBER: AR20160003470 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records (with supporting documents provided, if any). 2. Military Personnel Records and advisory opinions (if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show: * he was medically retired vice discharged with an under honorable conditions (general) discharge * his reentry (RE) code, separation code, and narrative reason changed to reflect his medical retirement * any back pay due as a result of a change in his discharge to a medical retirement * as an alternative, he requests an upgrade of his general discharge to an honorable discharge * he also requests a personnel appearance 2. The applicant states: a. He was discharged from the Army on 2 March 2009. On 23 August 2010, he applied to the Army Discharge Review Board (ADRB) and on 22 April 2011 the ADRB denied his request for an upgrade of his discharge to an honorable discharge. On 17 July 2012, he was informed by the Department of Veterans Affairs (VA) that he was reevaluated for his post-traumatic stress disorder (PTSD) claim and would receive 100 percent (%) disability for that condition. b. He enlisted in the Army on 22 June 2005 in military occupational specialty (MOS) 13D (Field Artillery (FA) Automated Tactical Systems Specialist) and completed Airborne school later that year. On 10 October 2006, he deployed to Iraq. On 20 January 2007, while deployed, several friends and members of his team were killed. This caused him great mental and emotional stress while he was home on leave. He suffered from anxiety and depression from the date of this incident to when he returned to Iraq after his rest and recuperation (R&R) leave. He requested to see mental health specialists while on the Forward Operating Base (FOB) but was denied by his chain of command. c. On 1 December 2007, he returned from Iraq and began to self-medicate with alcohol and marijuana. On 14 February 2008, he received an Article 15 for dereliction of duty. In 2009, his command decided to initiate discharge action against him under the provisions of Army Regulation (AR) 635-200 (Active Duty Enlisted Administrative Separations), chapter 14, for a pattern of misconduct [i.e. commission of a serious offense]. Prior to receiving the notification of the separation proceedings, he was sent for a medical examination appointment. The report, dated 28 January 2009, was completed for "misconduct" and filed with his separation packet. d. The mental status evaluation report indicated he had the mental capacity to understand and participate in the proceedings, was mentally responsible, met the requirements of AR 40-501 (Standards of Medical Fitness), paragraphs 3-31 through 3-37, and a search of his medical records did not indicate the presence of any diagnosis or condition that warranted separation through medical channels. The psychologist indicated he had been deployed but "did not endorse any symptoms related to combat exposure." He recalls that the meeting was very rushed and he did not understand that he should have discussed how he was feeling, his mental state, or any of his symptoms. e. On 4 February 2009, he was notified of his separation under AR 635-200, paragraph 14-12c, commission of a serious offense. On 2 March 2009, after nearly 4 years of service, he was discharged from the Army. The Independent Medical Opinion Medical Records Review letter, dated 1 August 2011, states that on 16 November 2010 Dr. JDB, PhD, diagnosed him with anxiety disorder not otherwise specified (NOS), cannabis disorder, and substance-induced anxiety disorder, and found he did not meet the criteria for PTSD. The letter further states that clinical Psychologist MD, Anchorage Alaska VA, made a report and found he did have PTSD. f. On 17 July 2012, the VA finally awarded him 100% for service-connected disabilities including PTSD with major depressive disorder with psychotic features, sleep disorder, anxiety, and chronic fatigue (also claimed as somatization disorder, eating disorder, and schizophrenia) and 10% for tinnitus, effective 11 January 2012. g. The 100% rating was based on his total occupational and social impairment, disorientation to place and time, intermittent inability to perform activities of daily living, maintenance of minimal personal hygiene, persistent danger of hurting others and self, persistent delusions and hallucinations, current mental functioning as reflected in Global Assessment of Function (GAF), difficulty in adapting to a work-like setting, stressful circumstances, and impaired impulse control. h. Equity requires that his discharge be upgraded to a medical disability retirement. In the Secretary of Defense Hagel's memorandum, he states that the Military Boards for Correction of Military (BCM)/Naval Records (NR) will fully and carefully consider every petition based on PTSD brought by each veteran and that special considerations will be given to VA determinations which document PTSD or PTSD-related conditions connected to military service. The directive should be applied to his case; his medical documentation from VA warrants the Board upgrading his discharge. i. He has the VA records to show he has a service-connected disability that should have been evaluated prior to his discharge. He case is similar to WC who was denied the "tangible and intangible benefits of being categorized by the Army as an individual who suffers from PTSD." Like WC, he did not know he was suffering from PTSD prior to his discharge and the Army should have evaluated him through the medical evaluation board (MEB) process. He has presented evidence to show he was exhibiting symptoms of PTSD while he was still in the Army. He served with DD and DD verified that the events took place in combat. DD stated that he (the applicant) had informed him that he was in fear, angry, sad, terrified, had nightmares, felt guilt, and heard voices while on leave from Iraq. His brother, ZJ, also described the difference he saw in him when he was on leave from Iraq and it was clear he needed to see a psychiatrist. j. He should not be prejudiced for a lack of mental health records reflecting his mental health problems suffered while serving in the Army. He sought mental health treatment but was denied. His understanding was that if he was not near death or losing a limb, he was not to seek medical treatment. Also, his meeting with the psychiatrist prior to his separation was rushed purely to clear him for separation under chapter 14 and not for the purpose of his treatment. 3. The applicant provides: * DD Form 214 * Enlisted Record Brief (ERB) * SGLV-8286 (Servicemembers' Group Life Insurance Election and Certificate), dated 8 December 2008 * three DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated between 14 February 2008 and 26 January 2009 * page 1 of DD Form 2807-1 (Report of Medical History), dated 23 January 2009 * DD Form 2808 (Report of Medical Examination), dated 23 January 2009 * DD Form 2216 (Hearing Conservation Data), undated * DA Form 3822 (Report of Mental Status Evaluation), dated 28 January 2009 * DD Form 2648 (Preseparation Counseling Checklist), dated 30 January 2009 * five memoranda, dated between 4 and 10 February 2009 * ADRB Case Report and Directive, dated 19 April 2011, with cover letter * VA Rating Decision, dated 17 July 2012 * Memorandum for Secretaries of the Military Departments, dated 3 September 2014 * VA letter, dated 14 October 2014 * Power of Attorney, dated 16 October 2014 * two statements of support, dated 20 and 29 October 2014 * self-authored affidavit, dated 20 January 2015 * three pages of a Military Times article titled Honor the Fallen, printed on 22 January 2015 CONSIDERATION OF EVIDENCE: 1. Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing. 2. The applicant enlisted in the Regular Army on 22 June 2005 and he held MOS 13D. On 11 January 2006, he was assigned to A Battery, 377th Parachute FA Regiment, Fort Richardson, AK. He served in Iraq with his assigned unit from 10 October 2006 and 1 December 2007. On 22 July 2007, he was promoted to specialist/E-4. 3. He received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, as follows on: * 14 February 2008, for being derelict in the performance of his duties by failing to sign in after returning from leave * 13 August 2008, for wrongfully using marijuana; part of the punishment imposed was reduction to private(PVT)/E-1 * 26 January 2009, for being disrespectful in deportment to a senior noncommissioned officer (NCO) and for driving under the influence (DUI) 4. On 28 January 2009, he underwent a mental status evaluation. The DA Form 3822, dated 28 January 2009, shows: a. The examining clinical psychologist found the applicant's behavior was normal, he was fully alert, fully oriented, his mood or affect was unremarkable, his thinking process was clear, and his thought content was normal. b. It was his opinion the applicant had the mental capacity to understand and participate in proceedings, he was mentally responsible, and he met retention requirements of AR 40-501, chapter 3. c. The applicant was command referred to Behavioral Health Service for a mental status evaluation to complete a separation under AR 600-235 [i.e. AR 635-200], paragraph 14-12c. The applicant indicated he had three Article 15s. A search of his medical records did not indicate the presence of any diagnosis or condition that warranted disposition through medical channels. The applicant had been deployed but did not endorse any symptoms related to combat exposure. On interview, his mental status was clear. The applicant was cleared for any administrative action deemed appropriate by the command. 5. On 4 February 2009, his immediate commander notified him that he was initiating separation action against him under the provisions of AR 635-200, paragraph 14-12c, for commission of a serious offense. He stated the reason for the proposed action was his use of marijuana and for DUI of alcohol. He was recommending his service be characterized as under honorable conditions (general). 6. On 4 February 2009, he consulted with legal counsel and was advised of the basis for the contemplated separation action under the provisions of AR 635-200, paragraph 14-12c, the type of discharge he could receive, its effect on further enlistment or reenlistment, the possible effects of this discharge, and the procedures and rights available to him. He declined to submit a statement on his own behalf and requested he receive an honorable discharge. 7. On 10 February 2009, his senior commander recommended approval of the separation action with a general, under honorable conditions discharge. 8. On 10 February 2009, the separation authority approved the separation action and directed the issuance of a General Discharge Certificate. On 2 March 2009, he was discharged accordingly. 9. The DD Form 214 he was issued confirms he was discharged in the rank of PVT under the provisions of AR 635-200, paragraph 14-12c. His DD Form 214 shows the following entries in: * item 26 (Separation Code) - JKQ * item 27 (RE Code) - 3 * item 28 (Narrative Reason for Separation) - misconduct (serious offense) 10. His ERB, dated 19 February 2009, shows his PULHES ratings at the time were 1-1-1-1-2-1. The "2" was in the E (Eyes) category of the PULHES. 11. His record is void of any evidence that shows while serving on active duty he was treated for, or diagnosed with, PTSD or any mental or medical condition that permanently prevented him from performing his assigned duties, was found to be unfitting, or required referral to an MEB or physical evaluation board (PEB). There is no evidence that shows he ever received a permanent profile of "3" that would require referral to an MEB/PEB or was recommended for an MEB by a physician. 12. On 15 April 2011, the ADRB denied his request of an upgrade of his discharge and determined his discharge was both proper and equitable. 13. The applicant provides a VA Rating Decision, dated 17 July 2012, wherein it shows, effective 11 January 2012, the applicant's: * evaluation of PTSD with major depressive disorder with psychotic features, sleep disorder, anxiety, and chronic fatigue (also claimed as somatization disorder, and schizophrenia), currently 10% disabling, was increased to 100% * service-connection for tinnitus was granted with an evaluation of 10% * service-connection for erectile dysfunction was granted with an evaluation of 0% * service-connection for headaches was deferred * service-connection was denied for heat exposure, cold exposure, traumatic brain injury, and hypertension 14. The applicant provides a statement of support, dated 20 October 2014, wherein his brother stated: a. The applicant came home on leave from Iraq on 20 January 2007. When they picked him up from the airport he did not look well, looked agitated, kept looking around as if he was being followed, and said he felt like he was in danger of being killed in the U.S. They knew he was in distress and he kept saying he needed to find a military psychiatrist to speak about a horrible attack he had been involved in. He said he was sad and terrified of what had happened in Iraq and could not go into details of the situation because it happened so fast. He said he had traveled by helicopter and before it came, there was an attack that killed several Soldiers he knew. b. During his stay, he overslept, was always checking the windows like he was on guard, and frequently asked what time and day it was. He stayed in his room most of the time and was glued to the television watching for any reports on the incident. We said he should go see a psychiatrist but he said if he did not return to Iraq he would be considered absent without leave (AWOL). 15. The applicant provides a statement of support, dated 29 October 2014, wherein DD stated, in part, he served in Iraq with the applicant. They were both in the tactical operations center (TOC) waiting to go on R&R leave when they learned of the attack on Outpost Karbala that Soldiers with A Battery had faced casualties, death, and Soldiers that were kidnapped by Iranian special forces. During the return trip to Iraq, they met up in Atlanta and the applicant told him he was in fear, angry, and terrified the whole time he was on leave. 16. In the processing of this case an advisory opinion was received on 21 November 2016 from the Psychologist/Medical Advisor, Army Review Board Agency. The advisory opined: a. The applicant's DD Form 214 indicated he was discharged under honorable conditions (general) for misconduct (serious offense) on 2 March 2009. The applicant requests his discharge be changed to a medical retirement or upgraded to honorable. The documentation reviewed were records available in the DOD electronic medical record (AHLTA), limited review of VA records through the Joint Legacy Viewer (JLV), evidence the applicant submitted, and his military records. b. The applicant was in the Army from 22 June 2005 to 2 March 2009 and during his service he deployed to Iraq from 10 October 2006 to 1 December 2007. He is now 100% disabled for PTSD and major depression with psychotic features through the VA as of 17 July 2012. His JLV records showed him to be continuing to receive psychiatric care through the VA for his multiple disorders. He previously appealed for an upgrade in his discharge but on 15 April 2011 his appeal was denied by the ADRB. c. Available records show his unit was attacked in Iraq when the applicant was in the TOC waiting to go home on leave. He volunteered to participate in a rescue mission to save fellow Soldiers captured in the attack, but his offer was rejected and he went home on leave. He began to report PTSD-type symptoms at that time. After he completed his deployment, he returned to Fort Richardson. While there, he received three Article 15s; one for disrespect to an NCO, a second for a positive urine test for THC, and a third for drunk driving. By the applicant’s own admission, he did not have any mental health treatment in the Army, although he alleges he requested to see a mental health specialist at the FOB during his Iraq deployment and was rejected by his command. After his discharge, he subsequently obtained a PTSD diagnosis. d. The applicant’s available records do NOT reasonably support him having had a boardable medical condition at the time of his discharge. He met standards in AR 40-501 and AR 635-40 (Physical Evaluation for Retention, Retirement, or Separation). If one was willing to grant an undiagnosed PTSD existed at the time of his discharge, it would mitigate two of his Article 15s, but not the Article 15 for drunk driving. His records did NOT include a medical examination that met Title 10, U.S. Code, section 1177 requirement; however, an exam is referenced in both an AHLTA note and by the patient, who has complained that it was cursory and that he did not understand its import. e. The applicant likely was on trajectory for a diagnosis of PTSD during his military service as evidenced by his self-medicating, irritability, poor frustration tolerance, poor social judgment during his service, and escalating social isolation after service but, based on available evidence, he did not have a presentation that would have enabled a competent practitioner to do any more than diagnose him as a young man at risk for developing PTSD. Even if he had been diagnosed, he would not have been boardable for a medical retirement as a Soldier is ordinarily entitled to a year of treatment to determine if he can be restored to be fit for duty. Nothing in the available records showed he was unfit for duty at that time. Finally, the VA's determination that the applicant is 100% disabled for PTSD and major depression with psychotic features is based on different standards and regulations than the relevant Army regulations. f. The applicant did meet medical retention standards in accordance with AR 40-501, chapter 3, and following the provisions set forth in AR 635-40 that were applicable to the applicant’s era of service. His medical conditions were duly considered during medical separation processing. A review of available documentation did not find evidence of a medical disability or conditions which would support a change to the character or reason for the discharge in this case. A causal nexus between the applicant’s behavioral health diagnoses and a portion of his misconduct was discovered; however, drunk driving is not mitigated. 17. On 22 November 2016, the applicant was provided a copy of the advisory opinion for information and to allow him the opportunity to submit comments or a rebuttal. He did not respond. REFERENCES: 1. AR 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 14 establishes policy and procedures for separating members for misconduct. Specific categories included minor disciplinary infractions, a pattern of misconduct, and commission of a serious offense, to include abuse of illegal drugs, convictions by civil authorities, and AWOL. A discharge under other than honorable conditions (UOTHC) was normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such was merited by the Soldier's overall record. b. Paragraph 3-7a states that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate. c. Paragraph 3-7b states that a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. AR 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, the SPD codes to be entered on the DD Form 214 and the corresponding narrative reason for separation. It states the SPD code of JKQ is the appropriate code to assign to Soldiers separated under the provisions of AR 635-200, paragraph 14-12c, and "misconduct (serious offense)" is the corresponding narrative reason for separation. The SPD/RE Code Cross Reference Table stipulates that an RE code of "3" will be assigned to members separated under these provisions with an SPD code of JKQ. 3. AR 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability. a. It states MEBs are convened to document a Soldier's medical status and duty limitations insofar as duty is affected by the Soldier's status. A decision is made as to the Soldier's medical qualification for retention based on the criteria in AR 40-501, chapter 3. b. Paragraph 2-1 provides that the mere presence of impairment does not, of itself, justify a finding of unfitness because of physical disability. In each case, it is necessary to compare the nature and degree of physical disability present with the requirements of the duties the member reasonably may be expected to perform because of his or her office, rank, grade, or rating. The Army must find that a service member is physically unfit to reasonably perform his or her duties and assign an appropriate disability rating before that service member can be medically separated or retired. 4. The Army physical profile serial system is based primarily upon the function of body systems and their relation to military duties. The functions of the various organs, systems, and integral parts of the body are considered. An individual having a numeric designation of "1" under all factors is considered to possess a high level of medical fitness. A physical profile designator of "2" under any or all factors indicates an individual possesses some medical condition or physical defect that may require some activity limitations. A profile containing one or more numerical designations of "3" signifies the individual has one or more medical condition that may require significant limitations. A permanent profile of "3" would require referral to an MEB. 5. Title 10, USC, section 1201, provides for the physical disability retirement of a member who has at least 20 years of service or a disability rating of at least 30%. Title 10, USC, section 1203, provides for the physical disability separation of a member who has less than 20 years of service and a disability rating of less than 30%. 6. PTSD can occur after someone goes through a traumatic event like combat, assault, or disaster. The Diagnostic and Statistical Manual of Mental Disorders (DSM) is published by the American Psychiatric Association (APA) and it provides standard criteria and common language for the classification of mental disorders. In 1980, the APA added PTSD to the third edition of its DSM-III nosologic classification scheme. Although controversial when first introduced, the PTSD diagnosis has filled an important gap in psychiatric theory and practice. From an historical perspective, the significant change ushered in by the PTSD concept was the stipulation that the etiological agent was outside the individual (i.e., a traumatic event) rather than an inherent individual weakness (i.e., a traumatic neurosis). The key to understanding the scientific basis and clinical expression of PTSD is the concept of "trauma." 7. PTSD is unique among psychiatric diagnoses because of the great importance placed upon the etiological agent, the traumatic stressor. In fact, one cannot make a PTSD diagnosis unless the patient has actually met the "stressor criterion," which means that he or she has been exposed to an event that is considered traumatic. Clinical experience with the PTSD diagnosis has shown, however, that there are individual differences regarding the capacity to cope with catastrophic stress. Therefore, while most people exposed to traumatic events do not develop PTSD, others go on to develop the full-blown syndrome. Such observations have prompted the recognition that trauma, like pain, is not an external phenomenon that can be completely objectified. Like pain, the traumatic experience is filtered through cognitive and emotional processes before it can be appraised as an extreme threat. Because of individual differences in this appraisal process, different people appear to have different trauma thresholds, some more protected from and some more vulnerable to developing clinical symptoms after exposure to extremely stressful situations. 8. The DSM fifth revision (DSM-5) was released in May 2013. This revision includes changes to the diagnostic criteria for PTSD and Acute Stress Disorder. The PTSD diagnostic criteria were revised to take into account things that have been learned from scientific research and clinical experience. The revised diagnostic criteria for PTSD include a history of exposure to a traumatic event that meets specific stipulations and symptoms from each of four symptom clusters: intrusion, avoidance, negative alterations in cognitions and mood, and alterations in arousal and reactivity. The sixth criterion concerns duration of symptoms; the seventh assesses functioning; and the eighth criterion clarifies symptoms as not attributable to a substance or co-occurring medical condition. 9. As a result of the extensive research conducted by the medical community and the relatively recent issuance of revised criteria regarding the causes, diagnosis and treatment of PTSD the DOD acknowledges that some Soldiers who were administratively discharged under other than honorable conditions may have had an undiagnosed condition of PTSD at the time of their discharge. It is also acknowledged that in some cases this undiagnosed condition of PTSD may have been a mitigating factor in the Soldier's misconduct which served as a catalyst for their discharge. Research has also shown that misconduct stemming from PTSD is typically based upon a spur of the moment decision resulting from temporary lapse in judgment; therefore, PTSD is not a likely cause for either premeditated misconduct or misconduct that continues for an extended period. 10. In view of the foregoing, on 3 September 2014 the Secretary of Defense directed the Service DRBs and Service BCM/NRs to carefully consider the revised PTSD criteria, detailed medical considerations and mitigating factors when taking action on applications from former service members administratively discharged UOTHC and who have been diagnosed with PTSD by a competent mental health professional representing a civilian healthcare provider in order to determine if it would be appropriate to upgrade the characterization of the applicant's service. BCM/NRs are not courts, nor are they investigative agencies. Therefore, the determinations will be based upon a thorough review of the available military records and the evidence provided by each applicant on a case-by-case basis. 11. Although the DOD acknowledges that some Soldiers who were administratively discharged UOTHC may have had an undiagnosed condition of PTSD at the time of their discharge, it is presumed that they were properly discharged based upon the evidence that was available at the time. Conditions documented in the record that can reasonably be determined to have existed at the time of discharge will be considered to have existed at the time of discharge. In cases in which PTSD or PTSD-related conditions may be reasonably determined to have existed at the time of discharge; those conditions will be considered potential mitigating factors in the misconduct that caused the UOTHC characterization of service. Corrections Boards will exercise caution in weighing evidence of mitigation in cases in which serious misconduct precipitated a discharge with a characterization of service of UOTHC. Corrections Boards will also exercise caution in weighing evidence of mitigation in all cases of misconduct by carefully considering the likely causeal relationship of symptoms to the misconduct. 12. Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award compensation for disabilities which were incurred in or aggravated by active military service. The VA, which has neither the authority, nor the responsibility for determining physical fitness for military service, awards disability ratings to veterans for conditions that it determines were incurred during military service and subsequently affect the individual's civilian employability. The VA awards disability ratings to veterans for service-connected conditions, including those conditions detected after discharge, to compensate the individual for loss of civilian employability. Unlike the Army, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability based upon that agency's examinations and findings. 13. AR 15-185 (ABCMR) states the ABCMR decides cases on the evidence of record. It is not an investigative body. Applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. DISCUSSION: 1. By regulation, an applicant is not entitled to a hearing before the ABCMR. Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR. In this case, the evidence of record and the evidence the applicant provided is sufficient to render a fair and equitable decision at this time. 2. The evidence of record confirms the applicant demonstrated he could not or would not meet acceptable standards required of enlisted personnel as evidenced by NJP he received on two separate occasions for being derelict in the performance of his duties and wrongfully using marijuana. He subsequently received NJP for being disrespectful to an NCO and DUI. Accordingly, his immediate commander initiated separation action against him. He was discharged under the provisions of AR 635-200, paragraph 14-12c, for misconduct (serious offense) with an under honorable (general) characterization of service. 3. Although he may have been diagnosed with PTSD after his discharge and may have been at risk for developing PTSD while serving on active duty, as verified by the advisory official, at the time of his discharge he met medical retention standards and there was no evidence that showed he had any medical or mental condition/disorder that warranted his processing through medical channels. His separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 4. With respect to the Secretary of Defense memorandum, this memorandum directed DRBs/BCMs to consider the revised PTSD criteria and mitigating factors for applicants who had been discharged UOTHC and who had subsequently been diagnosed with PTSD. However, it does not apply in this case as the applicant was discharged with an under honorable conditions (general) characterization of service and not UOTHC. If he had been discharged with an UOTHC characterization of service, and mitigating factors had been found to have contributed to his misconduct, it might have warranted consideration of upgrading the characterization of his service to under honorable conditions (general). Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and does not meet the criteria for an honorable discharge. 5. With respect to his narrative reason for discharge, the narrative reason was assigned based on the fact that he was discharged under the provisions of AR 635-200, paragraph 14-12c by reason of misconduct (serious offense). The only valid narrative reason for separation permitted under that paragraph is "misconduct (serious offense)" which is properly reflected on his DD Form 214. 6. With respect to his SPD and RE code, his SPD of JKQ was assigned based on his separation under the provisions of AR 635-200, paragraph 14-12c, and his RE code was based on his SPD of JKQ. An RE code of "3" is the correct RE code for Soldiers separated for misconduct (serious offense) and both are properly recorded on his DD Form 214. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003470 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003470 14 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2